Law and Culture from the Perspective of Textiles
Laura F. Edwards
Duke University
William Cary may have been a Virginia state legislator, but he was clueless when
it came to textiles. While attending the 1839 legislative session, his wife, Ophelia, wrote
him regularly with explicit, pointed directions about what kinds of cloth to buy. Ophelia’s
concerns were not unique. By the late-eighteenth century, women—poor women, both
free and enslaved, as well as wealthy white women—had become savvy participants in
the textile market, as both consumers and producers. That context explains the tone of
authority that Ophelia adopted when talking to her husband about cloth. She felt
confident in having him buy sheeting, which had been standardized by 1839. But she was
hesitant to let him purchase satin for a dress, because that kind of fabric varied widely,
and she doubted his ability to judge the quality and to bargain effectively. After scouring
the stores, William sent her samples of fabric that he thought satisfactory, but which
produced a flurry of worried correspondence from Ophelia about the shade (“jet black,
not the blue black, which will fade more and spot”) and the price (“do try and get it at
$1.25 per [yard]”). Finally, she lost patience and directed him to get “some lady to pick
it.” Presumably a lady—any lady—would be more knowledgeable than her husband.
As I hope to explain in my new book project, Only the Clothes on Her Back:
Women, Textiles, and National Development in the United States, this anecdote provides
insight into broad questions about law and national development between the Revolution
and the Civil War. It is also about the scholarly conceptions of law and culture. The
current historiography tends to frame analyses of law and politics in the developing
nation state in terms of the property that white men could own: land, slaves, and other
forms of capital. Yet most Americans did not own those forms of property. If they
owned or possessed anything at all, it was textiles (both cloth and clothing). Although
historians have tended to dismiss textiles as disposable goods that held little value, cloth
and clothing were not only valuable, but also economically important at this time. They
were also a form of property that people—even married women and the enslaved—could
control, even if they could not own it legally in their own names. Their ability to control
this form of property funneled those without property rights, in particular, into textile
production, because they could market these kinds of goods and, if they traded for more
textiles, keep the proceeds. That situation, in turn, turned textiles into a form of currency
and credit. People traded for other goods with textiles. They also invested in them,
because they were a reliable way to store wealth and leverage it. In fact, a whole semiunderground industry catered to those who did, with used clothing market and pawnshops
providing a ready means to turn cloth into cash with no questions asked.
By shifting the perspective away from the property that the minority owned to the
property that the majority possessed, textiles also decenter the nation state, which did not
completely control the rules of the textile trade. When women and poor men participated
in the trade in cloth and clothing, they moved in legal arena that overlapped with, but that
was not completely controlled by the nation state. More to the point, the textile trade
reveals the juridical reach of the United States in this period as limited: the United
States, as a nation state, did not yet hold a monopoly on the law, resulting in overlapping
jurisdictions. Historians of empire have produced an extensive literature that explores the
existence and implications of overlapping legal jurisdictions. Nineteenth-century U.S.
2
historians have not, even though there is striking evidence of this situation. There were
different areas of governance within the United States—local, state, and federal. But they
overlapped and even conflicted. Even the various parts of state governments did not
always coordinate and ended up bumping into each other. And the authority of states was
often at odds with federal authority. But legal jurisdictions also existed outside local,
state, and federal government, defined through rules observed and enforced in specific
cultural and, particularly, economic contexts.
The claims of free women, the enslaved, and poor men to textiles were recognized
as a matter of course in daily interactions in local communities and in local courts. The
expectation that these people could control textiles was central to the markets in these
goods. Storekeepers would never have stayed in business if they refused the trade of free
women, the enslaved, and poor people. It was presumed that women could buy cloth
without their husbands’ permission. Enslaved people often put what resources they had
into textiles, because this kind of property was the least likely to be questioned or seized
by whites. The underground market in used (and stolen) clothing was predicated on the
assumption that everyone—even those without property or even property rights—had
clothing. It was so commonplace to see poor people buying clothes or trading what they
had for something else that no one gave it a second thought.
The cultural place of clothing buttressed people’s claims to it. In property law,
clothing was personal property. But clothes were personal in a more profound sense as
well, linked as they were to specific individuals in ways that did not extend to other
forms of property. That was why married women, enslaved people, and servants who ran
away often put on stolen clothing. They were trying to hide—to be someone else.
3
Unfortunately, clothing could also betray fugitives while they were still in the area,
because others were as likely to recognize the garments as the person. That situation
spoke to one of the functions of the used clothing market, which was to “launder” stolen
clothes that needed to be passed along quickly before they were recognized. (By launder
here, I mean “launder” as a transfer meant to obscure the property’s origins, not
“launder” as a process of washing a garment with soap and water to remove stains and
odor.)
These economic practices took place under the cover of law, even though not all
of these legal practices were of the nation state. Legality came from other sources. One
was the world of commerce, which had its own legal culture. To be sure, the commercial
world depended on laws backed by the power of the nation state that regularized the
ownership and exchange of other forms of property (and of textiles when they took the
form of commodities, rather than clothing or small lots of cloth). But, as the literature
from the early modern period has shown, merchants also followed rules generated of
necessity and created through practice—rules that, with time and use, acquired the kind
of power associated with law. In the nineteenth century U.S., those kinds of practices
folded a wide range of people into networks of economic exchange that were not
governed or even sanctioned by the laws of the nation state. Textile merchants and
manufacturers had no choice, because their primary market was people without credit or
even property rights.
In its first decades, the laws of the nation state ran alongside a market in which
people without property or property rights could possess and trade in cloth and clothing.
Property law, as defined through state and federal jurisdictions, acknowledged the
4
existence of the other practices through which people claimed textiles. Most states’ laws,
for instance, recognized women’s claims to household items that they brought into
marriages, which often included textiles, as well as their claims to items of personal
attire, such as clothing and jewelry. More often the recognition was tacit, expressed
through a lack of action. State law remained silent when free women claimed textiles
they produced as well as wore. State law was also conspicuously silent on the subject of
enslaved people’s possession of clothing.
The people involved in the textile were operating at the local level, but they were
connected to a much wider economic network, of merchants and manufacturers, whose
businesses reached across the globe, but whose interests also remained tied to local areas
and the people who produced and bought textiles in there. These economic networks and
legal arenas reached both geographically and juridically above and below the nation, but
they were not necessarily “bigger” or “smaller” than the nation. In fact, the language of
big and small suggests how dependent current scholarship is on the nation, even in the
conceptualization of dynamics that are not about the nation. The literature rests on
geographic hierarchies that subordinate the local (small) to the regional (big), national
(bigger), and transnational or global (biggest) scales. In U.S. history, that hierarchy is
grounded by the nation, which we break down into regions (North, South, West) and
against which we define local areas. In U.S. history, recent work in transnational history
often leaves the nation in place to look to dynamics that are bigger and, presumably,
more meaningful than those within the nation.
The market in textiles suggests that these hierarchies are not particularly
descriptive of dynamics in the late eighteenth and early nineteenth centuries because the
5
juridical reach of the nation was limited. When it came to the markets in cloth and
clothing, many Americans leaped from the local to the global without really having much
to do with the nation state in which they lived. The people enmeshed in these networks
also experienced those spaces—local, regional, national, global—differently from how
that experience is imagined in conventional historiographical frameworks, which tend to
characterize localities as isolated places, subordinated to national laws and global forces
(both of which were bigger than and separate from localities).
This is what I mean when I say that textiles reframes our understanding of the
nation state’s history. It is a perspective upends some of the basic historiographical
wisdom: that women and enslaved people had little experience with or relationship to
property because state and federal laws limited or prohibited property ownership for
them; that the place of women and poor people within the developing capitalist market
was solely as exploited labor; that these people’s relationship to law and governance was
primarily one of exclusion; that local areas and the people who lived there were
provincial and unrepresentative of broader historical patterns; that the experiences of
propertied white men are the formative and representative experiences of the nineteenthcentury United States, such that the history in this period can be told in terms of the
extension of rights and privileges enjoyed by those white men to other people.
Factoring in the presence of the textile market also changes our view of law and
culture—if not the categories, then the relationship between then. First, what we have
conceived of as “law” becomes more fragile and more contingent. What historians have
seen as the growth of the nation state is actually better described as a challenge: a
challenge to assert its legal authority in a context where it was not the only game in town.
6
From that perspective, it seems all the remarkable that the nation state ultimately did
acquire that legal authority. Second, what we have conceived of as culture may have
more to do with law than we thought. The United States, as a nation, developed in
relationship to experiences with law, property, and government that Americans acquired
outside the juridical purview of the nation state. When Americans did interact with the
legal power of nation state, as they increasingly did in the years during and after the Civil
War, they brought those experiences with. They often expressed themselves in the legal
language of the nation state: the language of rights, of civic belonging, and the laws and
duties of citizenship. But, as we know from recent scholarship, the content of their claims
did not always match the formal definitions of terms that they used, at least not as those
terms were defined within governing institutions at the state and federal levels.
Americans, particularly enslaved Americans, made all kinds of substantive claims on the
federal government during and immediately after the Civil War—claims that were
outside the federal government’s jurisdictional scope, but that nonetheless suggest
experience with property and law gained elsewhere. Americans who could not own
property, for instance, had a sophisticated grasp of value and economic exchange such
that they could readily translate goods and labor into abstract units—not an easy concept
or set of calculations. Americans who had no rights also had a sophisticated
understanding of law as a sovereign authority that should regularize economic exchange
and social relations, if not produce justice. Americans of all kinds imagined lives within
the juridical confines of the nation state that resembled the one that they had lived outside
it: a world where they could claim their labor, possess property, and define their own
destinies. When they expressed themselves, they spoke like Ophelia Cary did, in a tone
7
that was pointed and firm, one that was about issuing orders, not making requests. Other
historians have documented such claims in detail and explained their presence in terms of
particular cultural communities—or identity politics, as the political culture of enslaved
people, of women, of laborers, or of immigrants. But this legal culture also cut across
and through these different groups of people, suggesting that it had common roots. Some
of those roots, as I see it, were in the whole range of dynamics opened up by that market
that existed below and above the nation state—a world made visible through textiles.
Those dreams and experiences were of America but not of the nation.
8